‘Nuclear option’ opens road for nominees to federal posts

U.S. Sen. Richard Burr, R-N.C., speaks to reporters following a vote on Capitol Hill on Oct. 9. He’s yet to give his approval for a Senate Judiciary Committee hearing on federal district court judge nominee Jennifer May-Parker.

Associated Press

By Wes Wolfe / Staff writer

Published: Tuesday, November 26, 2013 at 07:04 PM.

By U.S. Senate Democrats “going nuclear,” the longest-standing federal judicial vacancy — located here in Eastern North Carolina — may be one step closer to filled.

Essentially, it means for all Senate confirmations of presidential nominees — with the exception of the Supreme Court — the margin for confirmation is a simple majority.

Employing a tactic used by other minority parties in the Senate, Republicans have threatened a filibuster on a number of nominees, meaning Democrats need all their members and a few Republicans to reach the 60-vote total needed to invoke cloture and move to a vote.

While GOP senators can continue to employ the method on legislation and any potential Supreme Court nominees, all other nominees until the seating of the next Congress in January 2015 will be held to the new lower-vote threshold.

In eastern North Carolina, that could make an impact because of President Barack Obama’s nomination of Assistant U.S. Attorney Jennifer May-Parker to the federal bench.

Essentially, it means for all Senate confirmations of presidential nominees — with the exception of the Supreme Court — the margin for confirmation is a simple majority.

Employing a tactic used by other minority parties in the Senate, Republicans have threatened a filibuster on a number of nominees, meaning Democrats need all their members and a few Republicans to reach the 60-vote total needed to invoke cloture and move to a vote.

While GOP senators can continue to employ the method on legislation and any potential Supreme Court nominees, all other nominees until the seating of the next Congress in January 2015 will be held to the new lower-vote threshold.

In eastern North Carolina, that could make an impact because of President Barack Obama’s nomination of Assistant U.S. Attorney Jennifer May-Parker to the federal bench.

Senior U.S. District Court Judge Malcolm Howard chose to accept senior status in the U.S. District Court for the Eastern District of North Carolina at the end of 2005. Howard’s recently known for presiding over the trial and post-trial hearings regarding former state Rep. Stephen LaRoque.

By assuming senior status, Howard stayed on the bench, but with a reduced workload. The seat he vacated, subject to the standard workload, has been open since Jan. 1, 2006. The length of the vacancy qualifies it as a judicial emergency, according to the Administrative Office of the U.S. Courts.

Former President George W. Bush nominated Thomas Farr to the post on Dec. 7, 2006 and again in January 2007, after the seating of the next Congress, but Democrats — who gained control of the Senate in the 2006 elections — took a pass.

In a June 19, 2008 release, U.S. Sen. Richard Burr, R-N.C. and then-U.S. Sen. Elizabeth Dole, R-N.C., called for confirmation of Bush nominees.

“Like (federal circuit court nominee) Judge (Bob) Conrad, Thomas Farr’s nomination to the federal bench has languished far too long without so much as a hearing,” Dole said in the statement. “Nearly 600 days ago, Thomas Farr was nominated to serve as a District Court Judge in the Eastern District of North Carolina.

“Both of these dedicated public servants are abundantly qualified to serve on the bench, and it’s high time their nominations were given appropriate consideration by the Judiciary Committee.”

Obama nominated May-Parker to the seat June 20, but the time between Howard’s moving to senior status and present day hasn’t been kind to filling judicial vacancies.

On Feb. 1, 2007, there were 57 vacancies and 27 pending nominations. Those numbers remained relatively consistent, as there were 53 vacancies and 26 pending nominations on Jan. 1, 2009. But the month after nominations of May-Parker and a number of others, federal statistics show 82 vacancies and 31 pending nominations.

On Nov. 1, there were 94 vacancies and 50 pending nominations on the federal courts.

Of the 18 members of the Senate Judiciary Committee, 10 are Democrats, and should voting go along party lines in the committee and the full Senate, May-Parker would be the first black female federal judge in the history of North Carolina.

However, a Senate tradition is allowing home-state senators of nominees have significant say in the nomination’s progress. In this case, Burr hasn’t given the Judiciary committee what’s known as a “blue slip,” giving his OK — but not necessarily his support — for May-Parker’s consideration by the committee.

“One thing that all these senators (who haven’t submitted blue slips) have in common is that they generally say they have concerns, but it is rare for senators to specifically address what those concerns are,” said Katy Farrell, editor of Judgepedia, a project of the Lucy Burns Institute.

She continued, “Judicial transparency organizations often request — or make it sound in the news — that the public has a right to know, and senators should come out and be transparent with that information, but the vast majority of them never do.”

Burr’s press office didn’t return a request for comment as of press time.

But, regarding filibuster reform, Burr said in a statement Thursday, “The American people know what they get when the Senate removes the 60-vote threshold and the minority is stripped of its rights: they get unchecked power by the Executive Branch.

“The president and Harry Reid might not like the American people playing a role in outcomes through the minority, but it has worked well for over 200 years.”

There are four judges, including May-Parker, who have their nominations held up because of senators not sending in blue slips. That includes district court nominees in Florida and South Carolina, and an appeals court nominee in Georgia.

Michael Bitzer — an associate professor of politics and history, and acting provost at Catawba College — said it’s a possibility the blue-slip practice could get the ax as well, paving the way for May-Parker’s confirmation.

“The likelihood is that the ‘blue slip’ tradition could also be reformed (or) done away with in this rule-changing environment,” Bitzer said. “Senate Judiciary Chair Patrick Leahy would have to bring about that change in the tradition, and would only escalate the fallout from the filibuster reform that the Democrats got (last) week.”

The blue slip rules have been revised a number of times by the majority party, and Bitzer said all Leahy would have to do is change the custom to only needing one blue slip from a home-state senator for the nomination process to move along.

Sarah Binder, writing for The Washington Post’s “Monkey Cage” blog, said something similar when Reid invoked filibuster reform Thursday, noting committee chairs are under no obligation to honor the blue slip convention. Bitzer suggested the only exception being inviting the ire of the minority party.

Though Leahy said in a statement released Thursday he believed in “the Senate’s unique protection of the minority party,” what he describes as obstruction “is damaging our ability to fulfill the Senate’s unique constitutional responsibility of advice and consent to ensure that the judicial branch has the judges it needs to do its job.”

Currently, the Judicial Committee has 10 judicial nominations on its calendar — five district judge candidates from Michigan, two from Pennsylvania, one from the District of Columbia and two nominations for the Ninth Circuit Court of Appeals on the West Coast.

Wes Wolfe can be reached at 252-559-1075 and Wes.Wolfe@Kinston.com. Follow him on Twitter at @WolfeReports.